Business Immigration Law: 8 Helpful Hints for Employer Compliance

Do You Know How to Protect Your Company?
Business Immigration Compliance
The stir of illegal immigration issues and business immigration law causes business owners to evaluate their own hiring policies. The pressure is on. Many states (both blue and red states) have increased enforcement and penalties against companies who hire illegal aliens. Stiff penalties are sometimes imposed to force compliance. Businesses feel caught in the middle while they try to employ the best candidates but still obey business immigration law and keep regulators happy. This requires knowing the boundaries in two areas:

  • There are several actions you cannot take and questions you cannot ask during the screening and interviewing process.
  • There are several questions you MUST ask and actions that are required after the hiring decision has been made.

Following these 8 steps can help you make informed decisions that will protect your company from violating business immigration law when you hire new employees.

1. Believe It or Not, You Cannot Simply Ask

Incredible as it may seem, it is actually illegal to ask a potential employee (or a current employee) if he or she is a legal resident alien or a U.S. citizen. That violates business immigration laws for employment and also anti-discrimination and civil rights laws. Fortunately, there are other ways to discover the information you need to know.

2. Here Is What You Can Ask

The only personal information a business really needs to know is if the candidate has the legal right to work in the United States. That, you can ask.

3. Focus on Hiring Citizens

A US citizen (native or naturalized) automatically has the legal right to work anywhere in the country.
Asking where a person was born will not always give you the right impression. Naturalized citizens are always born elsewhere. Native citizens can be born overseas, too. Many native citizens in the workforce today were born in foreign nations while their parents (citizens) were serving in military or diplomatic locations such as Panama, Germany, Japan, or The Philippine Islands, for example.

4. Focus on Employment Authorization Documented Residents

Those who are not citizens but have the legal right to work fall into two categories:

  1. Legal resident aliens (while citizens of another country) with an EAD (Employment Authorization Document).
  2. Visiting aliens, in the US on a passport with appropriate work-permitted visas.

Their passport must contain valid US work-permitting visas such as the H1, H2, and F1. H1 and H2 visas are valid for working in one specific job for one specific company. F1 (the student visas) only allow a limited number of work hours while attending school.

5. Understand the Difference between Identity and Authority

When you make a hiring decision, you must validate the candidate’s identity and authorization to work. Most documents only prove one or the other, but not both.

  • Government-Issued IDs – Identity, but not Authority
  • Driving Licenses – Identity, but not Authority
  • Social Security Cards (some, but not all) Authority, but not Identity
  • Employment Authorization Document – Authority, but not Identity
  • Current US Passport or US Passport Card – proves both Authority and Identity
  • Expired US Passport – no longer acceptable for identity purposes

The I-9 Employment Verification Form gives instructions on what combinations are needed. Most importantly, the I-9 must be filed within 3 days of hire, or if hiring for 3 days or less, on the hiring date.

6. When to Use E-Verify

Enrolling and using E-Verify is free and use is voluntary; however, there are some business immigration law rules about how to use the system.

  1. E-Verify should be used only AFTER the decision to hire.
  2. If E-Verify fails to clearly validate a person’s eligibility, the candidate can challenge the results.
  3. During the challenge process, the employer cannot take punitive action against the candidate such as delaying his or her starting date or placement under limited employment.

7. When NOT to Use E-Verify

  1. E-Verify is not intended to be a replacement for the I-9 validation and filing process.
  2. It is against business immigration law to use E-Verify as part of the screening process for making the decision to hire someone.
  3. You must not check a person using E-Verify without telling the employee (whom you have just hired) that you are going to use it.
  4. It is against the law to use E-Verify to review the status of your current employees.

8. How to Keep Documentation

The requirement to retain I-9 verification forms is three years from date of hire or one year following the employee’s leaving the company, whichever is longer.

Make the Process Easier. . . We’ll Do It for You

Verifying legal right to employment can be tedious and time-consuming. It is also an area where CBR’s HR outsourcing services has a great deal of experience. CBR can take this and many other burdens off the shoulders of your company’s management. Give us a call at our toll free number, (888) 700-8512 and we can show you many ways CBR can save your company money . . . and headaches.